Claims under the Animals Act 1971 and how to defeat them

November 13, 2020

By Helen Rutherford

Introduction

The Animals Act 1971 is often criticised for being poorly-drafted, confusing and unfair. It can be tricky to navigate, for both Claimants and Defendants. Claimants seem to frequently fall into the trap of inadvertently suggesting a sheep is an exotic and wildly dangerous animal. Defendants can overlook some of the statutory defences.

The starting point for any Claimant bringing a claim for injuries caused by an animal will always be the Animals Act. Such claims will be varied: dog bites, sheep straying onto the highway, stampeding cows, or even zoo animals.

Claims will often be brought in negligence in the alternative to the Animals Act. Therefore a success defeating the Animals Act argument may not be the end of the claim, but it is a good place to start.

The Act

The main reason why it is important to give real thought to defeating claims brought under the Animals Act is the fact that s2 imposes strict liability on all keepers of the animal.

Who is the Correct Defendant?

This is the first consideration. Claims under the Animals Act can be brought against the keeper of the animal.

S6 Interpretation

(3) Subject to subsection (4) of this section, a person is a keeper of an animal if—

(a)he owns the animal or has it in his possession; or

(b)he is the head of a household of which a member under the age of sixteen owns the animal or has it in his possession;

and if at any time an animal ceases to be owned by or to be in the possession of a person, any person who immediately before that time was a keeper thereof by virtue of the preceding provisions of this subsection continues to be a keeper of the animal until another person becomes a keeper thereof by virtue of those provisions.

So, if someone owns an animal they are a keeper. That’s straightforward. They are also a keeper if they are the head of a household where someone under 16 owns an animal or has it in their possession. That is a little more complicated, given the use of the old-fashioned “head of the household”. This is a term which otherwise is rarely used, and since 2001 has not been used for the purposes of government censuses, social welfare etc. While there has not been a case on the point, one assumes in 2020 that the “head of the household” is any adult in a household, with responsibility for the children/dependents of the house.

Keepers are also people who have animals in their possession. For example, the owner of a livery yard which housed horses belonging to several different people. However, they must have a level of control over the animals; for example, in the case of Doolan v E P Cornall & Sons, a farmer who allowed horses to graze on his land for £8 a week was not deemed to be a keeper. He did not handle the horses at all. The keeper was deemed to be the head of the household of the horse’s young rider.

The provision also makes it clear that there will not be a situation where there is no keeper of an animal. For example, if someone abandoned their dog and it bit someone, they are still the keeper even though they didn’t have possession, because nobody else has stepped into the keeper’s shoes.

S2(1) Claims

In the vast majority of cases, claims pleaded under this section are pleaded incorrectly. This is limited to damage caused by animals of a dangerous species. This is defined in Section 6:

(2)A dangerous species is a species—

(a)which is not commonly domesticated in the British Islands; and
(b)whose fully grown animals normally have such characteristics that they are likely, unless restrained, to cause severe damage or that any damage they may cause is likely to be severe.

The type of claim you’d be looking at therefore would be a visitor to a zoo injured by an escaped lion. Not a dog walker tramped by sheep.

There was a case, prior to the Animals Act, which is often cited as influential in the approach to this legislation. That is Behrens and Another v Bertram Mills Circus Ltd [1957] 2 QB 1, in which trained, tame circus elephants were frightened by a loose dog and stampeded over the Plaintiffs’ booth, seriously injuring the female plaintiff (part of a double act with her husband). The court there found that elephants were always dangerous; the elephant was not to be judged by its own training but rather by the general habits of the species. This different approach for dangerous animals is mirrored in the Animals Act.

For animals which are not commonly domesticated in the British Isles, but are not obviously dangerous (like the lions, tigers, hippos etc) there can be more of an argument. Expert reports may be required on the nature of the species, to determine if they have the characteristics referred to in s6(2)(b) and thus are likely to cause severe damage.

For larger animals, irrespective of the characteristics, Claimants will argue that any damage they cause is likely to be severe.

Animals such as kangaroos can be trickier. They are generally docile, but have been known to attack in certain circumstances. It would not be correct to say they are “likely to cause severe damage, unless restrained”, since they can frequently live in harmony with human neighbours in their natural habitat. And the range of injuries is so broad, that it is arguable that any damage they cause is not likely to be severe.

Therefore, in cases involving animals not commonly domesticated, it may well be necessary to obtain expert evidence on the general nature of the species and the types of damage they cause (if such statistics exist). If the species is generally docile, then the focus will be on the type of damage they are likely to inflict. For that you would look at the way they inflict damage (do they bite, kick, punch etc), their anatomy (sharp teeth, strong legs etc) and any previous cases.

If the animal is not a dangerous species because it doesn’t fit into that definition, then you would be looking at the criteria in section 2(2).

S2(2) – non-dangerous species

The vast majority of cases will fall into this subsection.

(2)Where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage, except as otherwise provided by this Act, if—

(a)the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe; and

(b)the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances; and

(c)those characteristics were known to that keeper or were at any time known to a person who at that time had charge of the animal as that keeper’s servant or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of sixteen.

S2(2)(a) – Likelihood of damage/severe damage

Realistically, the vast majority of cases will pass the requirement in s2(2)(a). For example, a dog is likely to cause a dog bite injury, a cat is likely to cause scratches etc. Or with larger species, if a cow were to trample someone the damage is likely to be severe. The definition of “likely” in the case of Mirvahedy v Henley [2003] UKHL 16 was said to be “reasonably to be expected”- it has to be more than a possibility but does not have to be more likely than not.

This doesn’t mean that the point should simply be conceded, however. It isn’t always clear cut. For example, if a dog jumps up at someone and they fall and crack their head open, is that damage which was likely to be caused by an unrestrained dog?

Previous cases have suggested that the court can look at the breeds of animals, rather than simply the species. For example, the case of Curtis v Betts [1990] 1 WLR 459, the fact that the dog in question was a bull mastiff affected the likely severity of any damage which it may cause.

Indeed, in the definitions section at 11, it states “including sub-species and variety”. It was confirmed in Hunt v Wallis [1994] PIQR P128 that where there was an identifiable breed of animal, with known and identifiable characteristics then a comparison should be drawn between the animal causing the damage and that breed/sub-species, at least when the characteristics of the breed were known to be beneficial. Thus a Labrador will be treated differently to a German Shepherd, a Yorkshire Terrier will be considered against other Yorkshire Terriers, rather than Border Collies.

It may therefore be necessary to obtain an expert report on the particular breed you are looking at. Such reports have been useful in previous cases involving a particular breed of cow, as well as the obvious dog cases. At the very least, in the case of a dog injuring a person, the breed characteristics which are freely available via the Kennel Club or the breed club websites could be useful.

S2(2)(b) – Characteristics of the animal

The next requirement is that the likelihood of the damage or its being severe was due to characteristics of the animal which are not normally found in animals of the same species, or are not normally so found except at particular times or in particular circumstances.

This is largely case-specific. You will be looking at the circumstances of the injury and what caused it. For example, was the dog guarding its car, as in the case of Curtis? Was the horse spooked and bolting out of panic, as in Mirvahedy?

This is an area which is hotly debated. Lord Scott in Mirvahedy expressed concern that the application of this section may be so broad as to be problematic. He gave the example of nobody being liable for the damage caused by a wild deer which is startled and runs into the path of a car, because it is not a dangerous species, yet the owner of deer escaped from a farm would be liable, despite the characteristics being perfectly normal in those circumstances.

“This would produce the paradoxical situation in which on the one hand deer are removed by section 6(2)(b) from being categorised as a “dangerous species” but on the other hand an individual deer may impose strict liability on its keeper under section 2(2)(b) for damage caused by behaviour entirely normal for the species”

The majority in that case found that the tendency of a horse to bolt was not normally found in animals of the same species, except at particular times/circumstances (when the horse was sufficiently panicked).

An example of a clearer cut situation is the case of Kite v Napp, in which the Claimant was bitten by a dog which was known to attack people carrying bags. That characteristic was not normally found in animals of the same species.

This area is admittedly difficult for Defendants. Not only has the interpretation of “particular circumstances” meant that its effect is incredibly broad (since any horse can bolt when sufficiently panicked, just as any dog could bite if threatened etc), but it was further worsened in the case of Welsh v Stokes [2007] EWCA Civ 796 where the Claimant didn’t even remember what happened. The only evidence was from a driver who fled the scene telling another driver who provided a witness statement, that the horse had reared and the rider had fallen off.  It was enough that horses can rear in certain circumstances.

It was said by Dyson LJ:

“it seems to me that the core meaning of “normal” is “conforming to type”. If a characteristic of an animal is usual, then it will certainly be normal. The best evidence that a characteristic conforms to the type of animals of a species is that the characteristic is usually found in those animals…it is difficult to see why Parliament should have intended to exclude from the ambit of subsection (2)(b) cases where the relevant characteristic is natural, although unusual, in the animal which had caused the damage. There is no need for such a narrow interpretation because a claim will not succeed unless the knowledge requirement is subsection (c) is also satisfied”.

One case in the Defendant’s favour on this point was Freeman v Higher Park Farm [2008] EWCA Civ 1185, in which a horse which was known for bucking when first cantering did an unusually large buck and unseated its rider. The Claimant had argued that “at particular times or in particular circumstances” meant anything which was not continuous. The court rejected that and Etherton LJ drew a distinction between situations where the owner is able to try and guard against a danger (for example where a cow had calved) and circumstances which cannot be guarded against. He felt strict liability may not be imposed in the latter situation.

The Claimant in that case was criticised for not providing any evidence at all that horses generally buck at particular times or in particular circumstances. This is worth noting in future cases: if there is no evidence of the ordinary characteristics of the species being considered, the court cannot determine what is abnormal. This is a useful argument.

Cases which ought to fail under this limb include those which involve a general characteristic of the species. For example, a horse standing on someone’s foot is likely to cause damage, not because of anything abnormal about the individual horse, but rather due to their weight. Such a situation was considered in Clark v Bowlt, where the horse’s weight did satisfy the s2(2)(a) requirement, but not s2(2)(b) since it is a normal feature of horses (there the horse had moved suddenly into the road from the grass verge and hit the front nearside of the Claimant’s car, causing him injury).

S2(2)(c) – The Knowledge Requirement

This is a useful argument in most cases. The keeper has to have knowledge of the relevant characteristics (although not the circumstances which caused the characteristics to arise).

Hunt v Wallis [1994] PIQR 128 made it clear that *actual* knowledge of the characteristics is required; it is not enough to say the keeper ought to have known. However, in Welsh it was made plain that knowledge of the general characteristic is sufficient. As per Dyson LJ:

 “I do not see why a keeper’s knowledge that a horse has the characteristic of normally behaving in a certain way in particular circumstances cannot be established by showing that the keeper knows that horses as a species normally behave in that way in those circumstances . . . . It makes no sense to require a keeper, if aware of that general characteristic, to have some additional and more particular knowledge.”

In McKenny v Foster the claim failed. The Claimant was driving and collided with a loose cow on the road, resulting in injuries for the Claimant and death for her passenger. The cow was agitated due to her calf having been weaned. She wanted to get back to her calf so scaled a 6-bar gate and jumped a cattle grid to get to the road. this extreme agitation was abnormal. While some level of agitation at weaning could be expected, this cow’s actions of clearing a large gate and jumping a cattle grid could not.

The claim also failed in Chauhan v Paul, in which a Rottweiler called Boots had no prior history of chasing people entering the premises and thus the Defendants had no knowledge of such a characteristic. It helped that there was a lot of evidence of the dog’s characteristics.

Defences – s5

The Act contains some defences to the strict liability imposed by s2. These are applicable for both dangerous and non-dangerous species.

(1)A person is not liable under sections 2 to 4A of this Act for any damage which is due wholly to the fault of the person suffering it.

(2)A person is not liable under section 2 of this Act for any damage suffered by a person who has voluntarily accepted the risk thereof.

(3)A person is not liable under section 2 of this Act for any damage caused by an animal kept on any premises or structure to a person trespassing there, if it is proved either—

(a)that the animal was not kept there for the protection of persons or property; or

(b)(if the animal was kept there for the protection of persons or property) that keeping it there for that purpose was not unreasonable.

S5(1) Damage Wholly Due to the Fault of the Claimant

For this we will have to consider the circumstances of the incident. As an example, if someone goads an animal to the point of it biting them, then obviously they are at fault for the incident.

Examples of where this defence operated include Dhesi v Chief Constable of the West Midlands Police [2000] WL 491455 (where a police dog bit a suspect who refused to come out of a hiding place- clear warnings had been given that he should come out or the dog would be sent in. He caused the injury by refusing to come out), and Nelms v Chief Constable of Avon and Somerset Police 9th February 1993 (where the Claimant had kicked a police dog).

A further example is in Jones v Baldwin (2010) unreported Cardiff County Court, in which the Claimant was injured when he rode too close to the rear of the horse in front and was kicked.

S5(2) Claimant Voluntarily Accepted the Risk

The Defendant will have to prove that the Claimant fully appreciated the risk and exposed themselves to it. For example, if the Defendant had a loose dog on their premises, but had a number of signs warning against its presence, there will be a decent argument that the Claimant who has seen those signs and entered the premises anyway has voluntarily accepted the risk (as in the case of Cummings v Granger)

For a horse riding perspective, Turnbull v Warrener [2012] EWCA Civ 412 is a useful case. There the Claimant knew of the general risks of horse riding. She also knew that the horse was working in a bitless bridle for the first time, and knew that the horse might not respond the same in it. She accepted the risk when she chose to canter the horse in an open field. The judgement in Plum v Barry  from 5th November 2004, per Mr Recorder Ryan, was noted with approval. That stated:

“ . . the risk of being unseated by such an event is one which any rider who is competent to canter and hack accepts. Riding is a pursuit involving the control by a rider with the wind and the aids of rein, leg, seat and crop of a horse with its own mind and physical attributes. That relationship and activity involving two living beings cannot be precisely predicted or judged to the second or the centimetre. The occurrence of an accident in such a manner as I have found is precisely the risk and type of risk which a rider undertakes.

The case of Freeman v Higher Park Farm is also useful. There the Claimant was riding a horse which was known to buck, but on the day it did a particularly large buck. The Claimant could not say she accepted the risk of some bucking but not all, or that she accepted the risk of one size of buck but not another. She knew the horse could buck and agreed to ride it in any event. She had accepted the risk.

Similarly, in Goldsmith v Patchcott [2012] EWCA Civ 183 at [50] Jackson LJ stated:

“If the claimant, knowing of the risk which subsequently eventuates, proceeds to engage with the animal, his or her claim under the Act will be defeated. It is not a prerequisite of the section 5 (2) defence that the claimant should foresee the precise degree of energy with which the animal will engage in its characteristic behaviour. Animals may act out of instinct or impulse and their precise behaviour cannot necessarily be predicted.”

There the Claimant was unseated by a horse which had reared and bucked violently, causing her facial injuries. The horse was thought to be startled, but it was not known by what. Because the Claimant knew horses could buck or rear when alarmed, it did not matter that she didn’t know the horse would buck as violently as it did; she had voluntarily accepted the risk.

This defence is the counter to the position in s2(3) in which general knowledge is all that is required to establish sufficient knowledge to be strictly liable. Equally, general knowledge is all that should be required to show that the Claimant had enough knowledge to voluntarily accept the risk of injury.

It should be noted that this defence is not available where the Claimant was an employee of a keeper, as per s6(5): Where a person employed as a servant by a keeper of an animal incurs a risk incidental to his employment he shall not be treated as accepting it voluntarily.

S5(3) Trespass Defence

If someone is not invited onto land then s5(3) can provide a defence to the animal keeper if it causes damage. If the animal is not there to guard the property, then s5(3)(a) applies. If it is a guard animal then the keeper will have to prove it was not unreasonable to keep the animal on the premises for that purpose.

Whether a person is a trespasser will depend on the facts of the individual case. This defence won’t provide protection if a dog attacks a postman attending on the property to deliver a letter, for example. But it could protect if ramblers stray off a public footpath into a field with bulls.

Conclusion

There are a number of issues with the Animals Act 1971, which is why over the years there have been a number of attempts to persuade Parliament to redraft it, most notably following a DEFRA consultation in 2009.

Despite its shortcomings, and the perceived Claimant-friendly interpretation of section 2(2), defences to claims brought under the Act are not without merit. Each element has to be considered carefully, since a failure under any of the limbs will mean strict liability is not imposed. And just as the knowledge requirement for a keeper has been interpreted very broadly, the same will apply to the defences. This evens out the balance in many cases.

Things to Remember

  • Check the Defendant is actually a keeper of the animal – if they merely rent out space to keep animals they may not be found to be a keeper. Similarly, as per s6(4) they are not a keeper if they temporarily take possession to prevent it from causing damage or to return it to its owner;
  • Has the right part of the Animals Act 1971 been used? Is the animal of a dangerous species or not?
  • Just because the injury suffered was severe, does not mean any injury was likely to be severe;
  • Provide as much evidence as possible on the nature of the animal, if its characteristics are in question. For example, get statements from vets, groomers, dog walkers, employees etc on their experience of the animal.
  • Also provide evidence of the characteristics of the breed itself, be it cow, dog, horse or sheep. This may be expert evidence if the cost is justified, otherwise from books or the internet on breed standards or uses;
  • Remember, entirely normal characteristics in the species do not result in strict liability. Eg. The mere weight on an animal causing the damage is not a characteristic found only at particular times or in particular circumstances.
  • Remember there is a different approach for guard dogs.
  • Check the defences at s5.
    • Did the Claimant cause the injury themselves?
    • Did the Claimant voluntarily accept the risk?
            • Did they have general or specific knowledge of the risk?
            • Had the Defendant or someone else warned the Claimant of the risk?
    • Were they a trespasser?
  • Remember, many cases pleading a claim under the Animals Act 1971 will plead negligence in the alternative; be ready to defend on both fronts.
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